Blobner v. Artemis Marketing Corp. et alRESPONSE in Opposition re MOTION to Certify ClassM.D. Fla.March 28, 2019 1741922.1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION ROBERT BLOBNER, individually and on behalf of all those similarly situated, Plaintiff, v. R.T.G. FURNITURE CORP., Defendant. CASE NO. 8:17-CV-1676-JSM-SPF DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Jamie Zysk Isani (Fla. Bar No. 728861) Corey Lee (Fla. Bar No. 44448) HUNTON ANDREWS KURTH LLP 1111 Brickell Ave. Suite 2500 Miami, FL 33131 Tel: (305) 810-2500 Fax: (305) 810-1675 jisani@huntonAK.com leec@huntonAK.com Frank M. Lowrey, IV (pro hac vice) Chad K. Lennon (pro hac vice) BONDURANT MIXSON & ELMORE LLP 3900 One Atlantic Center 1201 W. Peachtree St. NW Atlanta, GA 30309 Tel: (404) 881-4100 Fax: (404) 881-4111 lowrey@bmelaw.com lennon@bmelaw.com Mark J. Criser (Fla. Bar No. 0141496) Tori C. Simmons (Fla. Bar No. 107081) HILL WARD & HENDERSON PA 101 E. Kennedy Blvd. Suite 3700 Tampa, FL 33602 Tel: (813) 221-3900 Fax: (813) 221-2900 mark.criser@hwhlaw.com tori.simmons@hwhlaw.com Counsel for Defendant R.T.G. Furniture Corp. Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 1 of 36 PageID 1651 1741922.1 i TABLE OF CONTENTS INTRODUCTION ................................................................................................................... 1 THE RECORD......................................................................................................................... 4 I. The record refutes Blobner’s assertion that all BL was defective. .............................. 4 II. There is no evidence that the BL on all items was formulated to last one year in a non-humid environment—and individualized proof establishes that it was not.......... 6 III. Blobner’s claim turns on individualized evidence. ...................................................... 8 ARGUMENT AND CITATION OF AUTHORITIES .......................................................... 10 I. Blobner lacks standing to assert claims relating to products he did not purchase. .... 10 II. The proposed class is not adequately defined. ........................................................... 13 III. Blobner has failed to prove commonality. ................................................................. 13 IV. Blobner has failed to prove typicality. ....................................................................... 13 V. Individual questions, not common questions, predominate. ...................................... 14 A. Individual questions predominate on the FDUTPA claim. ............................ 14 1. Whether RTG engaged in a deceptive act or unfair practice turns on individualized proof. .......................................................................... 14 2. Causation turns on individualized proof. ........................................... 19 3. Whether each purchaser suffered damages and the amount of any damages turn on individualized proof. ............................................... 20 4. The claims of purchasers who accepted credit offers turn on individualized proof. .......................................................................... 25 B. Individual issues predominate on the unjust enrichment claim. .................... 26 VI. Blobner has failed to prove superiority. ..................................................................... 28 CONCLUSION ...................................................................................................................... 28 Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 2 of 36 PageID 1652 1741922.1 ii TABLE OF AUTHORITIES Cases Atkinson v. Wal-Mart Stores, Inc., 2009 WL 1458020 (M.D. Fla. May 26, 2009) ........................................................... 10 Barron v. Snyder’s-Lance, Inc., 2015 WL 11182066 (S.D. Fla. Mar. 20, 2015) .......................................................... 11 Bohlke v. Shearer’s Foods, LLC, 2015 WL 249418 (S.D. Fla. Jan. 20, 2015) ......................................................... 11, 24 Branch v. Credit Union of Texas, 2008 WL 11336300 (M.D. Fla. Dec. 30, 2008) ..................................................... 4, 13 Brown v. Electrolux Home Products, 817 F.3d 1225 (11th Cir. 2016) ........................................................... 4, 13, 14, 16, 25 Carriuolo v. General Motors Co., 823 F.3d 977 (11th Cir. 2016) ................................................................................... 20 Carter v. Forjas Taurus, S.A., 701 F. App’x 759 (11th Cir. 2017) ............................................................................ 12 Cedeck v. Hamiltonian Federal Savings & Loan Ass’n, 551 F.2d 1136 (8th Cir. 1977) .................................................................................... 7 City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630 (S.D. Fla. 2010) .......................................................................... 19, 26 Comcast Corp. v. Behrend, 569 U.S. 27 (2013) ......................................................................................... 20, 21, 25 Coughlin v. Capitol Cement Co., 571 F.2d 290 (5th Cir. 1978) ....................................................................................... 7 County of Monroe v. Priceline.com, Inc., 265 F.R.D. 659 (S.D. Fla. 2010) ................................................................................ 26 Dapeer v. Neutrogena Corp., 95 F. Supp. 3d 1366 (S.D. Fla. 2015) .................................................................. 11, 12 Davis v. Powertel, Inc., 776 So. 2d 971 (Fla. 1st DCA 2000) ........................................................................ 16 Decerbo v. Melitta USA Inc., 2016 WL 7206244 (M.D. Fla. Oct. 17, 2016) ..................................................... 11, 12 Democratic Republic of the Congo v. Air Capital Grp., 614 F. App’x 460 (11th Cir. 2015) ...................................................................... 22, 23 Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 3 of 36 PageID 1653 1741922.1 iii Foster v. Green Tree Servicing, LLC, 2017 WL 5508371 (M.D. Fla. Nov. 15, 2017) ............................................................ 4 Garcia v. Clarins, USA, Inc., 2014 WL 11997812 (S.D. Fla. Sept. 5, 2014) ........................................................... 11 Garcia v. Kashi Co., 43 F. Supp. 3d 1359 (S.D. Fla. 2014) ........................................................................ 11 Gardner v. Ford Motor Co., 166 F. Supp. 3d 1261 (M.D. Fla. 2015) ....................................................................... 9 Geodetic Services, Inc. v. Zhengzhou Sunward Technology Co., 2014 WL 12620804 (M.D. Fla. Apr. 4, 2014) .......................................................... 27 Griffin v. Dugger, 823 F.2d 1476 (11th Cir. 1987) ................................................................................. 12 H&J Paving of Florida, Inc. v. Nextel, Inc., 849 So. 2d 1099 (Fla. 3d DCA 2003) ........................................................................ 23 Harris v. Nortek Global HVAC LLC, 2016 WL 4543108 (S.D. Fla. Jan. 29, 2016) ..................................... 16, 19, 21, 26, 27 Holliday v. Albion Laboratories, Inc., 2015 WL 10857479 (S.D. Fla. June 9, 2015) ...................................................... 11, 12 In re Checking Account Overdraft Litigation, 281 F.R.D. 667 (S.D. Fla. 2012) ................................................................................ 26 In re ConAgra Peanut Butter Products Liability Litigation, 251 F.R.D. 689 (N.D. Ga. 2008) ............................................................................... 22 In re Morning Song Bird Food Litigation, 320 F.R.D 540 (S.D. Cal. 2017) ................................................................................ 24 In re National Life Insurance Deferred Annuities Litigation, 268 F.R.D. 652 (S.D. Cal. 2010) ............................................................................... 26 In re Terazosin Hydrochloride Antitrust Litigation, 220 F.R.D. 672 (S.D. Fla. 2004) ................................................................................ 26 James D. Hinson Electrical Contracting Co. v. BellSouth Telecommunications, Inc., 275 F.R.D. 638 (M.D. Fla. 2011)............................................................................... 26 Justice v. Rheem Manufacturing Co., 318 F.R.D. 687 (S.D. Fla. 2016) .......................................................................... 16, 26 Kia Motors America Corp. v. Butler, 985 So. 2d 1133 (Fla. 3d DCA 2008) ............................................................ 16, 19, 21 Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718 (11th Cir. 1987) ................................................................................... 13 Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 4 of 36 PageID 1654 1741922.1 iv Landeros v. Pinnacle Recovery, Inc., 692 F. App’x 608 (11th Cir. 2017) ............................................................................ 18 Leon v. Continental AG, 301 F. Supp. 3d 1203 (S.D. Fla. 2017) ................................................................ 11, 12 Makaeff v. Trump University, LLC, 309 F.R.D. 631 (S.D. Cal. 2015) ......................................................................... 23, 24 Montgomery v. Aetna Casualty & Surety Co., 898 F.2d 1537 (11th Cir. 1990) ................................................................................. 25 Ohio State Troopers Ass’n v. Point Blank Enters., 347 F. Supp. 3d 1207 (S.D. Fla. 2018) ................................................................ 11, 12 Ortiz v. Ford Motor Co., 909 So. 2d 479 (Fla. 3d DCA 2005) .......................................................................... 26 PB Property Management, Inc. v. Goodman Manufacturing Co., 2016 WL 7666179 (M.D. Fla. May 12, 2016) ..................................................... 15, 19 Perisic v. Ashley Furniture Industries, Inc., 2018 WL 3391359 (M.D. Fla. June 27, 2018) ............................................... 13, 24, 26 Prado-Steiman v. Bush, 221 F.3d 1266 (11th Cir. 2000) ................................................................................. 10 Reilly v. Amy’s Kitchen, Inc., 2013 WL 9638985 (S.D. Fla. Dec. 9, 2013) .............................................................. 11 Reilly v. Amy’s Kitchen, Inc., 2014 WL 905441 (S.D. Fla. Mar. 7, 2014) ................................................................ 11 Reilly v. Chipotle Mexican Grill, Inc., 711 F. App’x. 525 (11th Cir. 2017) ........................................................................... 21 Rollins, Inc. v. Butland, 951 So. 2d 860 (Fla. 2d DCA 2006) .............................................................. 13, 21, 24 Rollins, Inc. v. Heller, 454 So. 2d 580 (Fla. 3d DCA 1984) .......................................................................... 22 Rosen v. J.M. Auto Inc., 270 F.R.D. 675 (S.D. Fla. 2009) ................................................................................ 16 Rutstein v. Avis Rent-A-Car Sys., 211 F.3d 1228 (11th Cir. 2000) ................................................................................. 18 Sanchez-Knutson v. Ford Motor Co., 2015 WL 11197772 (S.D. Fla. July 22, 2015) .......................................................... 11 Toback v. GNC Holdings, Inc., 2013 WL 5206103 (S.D. Fla. Sept. 13, 2013) ........................................................... 11 Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 5 of 36 PageID 1655 1741922.1 v Varner v. Domestic Corp., 2017 WL 3730618 (S.D. Fla. Feb. 7, 2017) .............................................................. 11 Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009) ........................................................................... 26, 27 Walewski v. ZeniMax Media, Inc., 2012 WL 834125 (M.D. Fla. Jan. 30, 2012) .............................................................. 26 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ............................................................................................. 13, 18 Warth v. Seldin, 422 U.S. 490 (1975) ................................................................................................... 12 Webber v. Esquire Deposition Services, LLC, 439 F. App’x 849 (11th Cir. 2011) ............................................................................ 26 Wooden v. Board of Regents of the University System of Georgia, 247 F.3d 1262 (11th Cir. 2001) ................................................................................. 10 Rules Federal Rule of Civil Procedure 23 ....................................................................................... 28 Federal Rule of Evidence 1006 ................................................................................................ 6 Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 6 of 36 PageID 1656 1741922.1 1 INTRODUCTION Plaintiff Blobner’s class motion is premised on the false assertion that the upholstery on every item of bonded leather furniture sold by Defendant R.T.G. Furniture Corp. (“RTG”) was “inherently defective.”1 No evidence, common or otherwise, supports this assertion. For bonded leather furniture (“BLF”) shipped from June 1, 2013 to June 12, 2017,2 the record reflects that the bonded leather (“BL”) on over of items experienced no problem during the one-year warranty period.3 And the vast majority of BL experienced no problem well after the warranty period: The record reflects that the BL on of items experienced no problem within two years, on of items experienced no problem within three years, and on of items did not experience any problem at all. The sum total of Blobner’s evidence is that a minority of purchasers complained about their BLF, generally after using it for years. Those complaints are not evidence that all BL was defective. A complaint alone does not prove a defect (because a jury would have to assess the cause of the problem alleged). But even if it did, a complaint about one item would not prove a defect in any other item, let alone in the hundreds of thousands of items that performed without incident. Blobner offers no expert or other evidence that there was any common design or manufacturing defect in the BL on all the items RTG sold. Nor could he. What Blobner tries to hide is that the BL on the items RTG sold was not a single product, but instead was manufactured by an untold number of companies. RTG did not make BL or BLF; it purchased finished BLF products from vendors and re-sold 1 D.E. 104 (Pl’s. Mot. for Class Certification & Mem. of Law) (“Pl’s. Mot.”) at 3 (emphasis omitted). 2 RTG calls this time frame the “Period” because the proposed Class Period starts on June 1, 2013, id. at 10, and the data in the record runs through June 12, 2017. 3 Infra at 5-6 (discussing statistics herein). RTG sold BLF with a one-year warranty, except for certain “as is” sales. Ex. 1 (Otis Dec.) ¶ 2; D.E. 94-11 (Second Am. Compl.) (“SAC”), Ex. 11 (Blobner Sales Order) at P0002. Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 7 of 36 PageID 1657 1741922.1 2 them.4 During the Period, RTG purchased and re-sold 475 unique BLF products from 25 furniture vendors.5 Those vendors in turn purchased the BL used on their products from an unknown number of BL manufacturers—witnesses say there are “a number” of, “multiple,” and possibly 3,000 BL manufacturers.6 There is no evidence that all these companies used the same manufacturing processes or materials to make BL and no evidence that identifies which company manufactured the BL on each item RTG re-sold. In reality, “bonded leather” is a category that includes different products in the same way that, for example, “high-gloss paint” is a category that includes different products. Home Depot sells high-gloss paint manufactured by several companies (Behr, Glidden, PPG, etc.), all of which has a high sheen, an adhesive binder, and pigment—just as all BL (at a high level of generality) has polyurethane, a fabric layer, and leather. But that does not mean all high-gloss paint is the same. For example, a Behr high-gloss may peel after two years, a Glidden high-gloss after three years, and a PPG high-gloss after four years. That all three can be described as “high-gloss paint” does not make them a single product, and a complaint about one of these products would not prove a defect in the other products. Here, Factory 1 may have produced BL that never experienced a problem. Factory 2 may have used different processes or materials and produced BL that experienced problems 4 Ex. 2 (Rubin Dep.) at 60 (“Q. Every single piece of bonded leather furniture that Rooms To Go has ever sold to a consumer in Florida or otherwise, has been made by somebody else, correct? A. That is correct.”). 5 Ex. 3 (Ratner Dec.) ¶ 19(f)-(g). 6 Ex. 4 (Witcher Dep.) at 7 (“There are a number of suppliers who at the time we’re talking about were manufacturing, selling [BL]. There are a number of fabric mills, leather tanneries. We [Southern Motion] obtain all of that raw material from outside sources.”); id. at 47 (confirming “there were a number of different manufacturers or fabric mills who were making the actual [BL] used by Southern Motion from 2012 to 2017”); Ex. 5 (Hamby Dep.) at 7:6-13 (United Furniture bought BL from China and used it to upholster goods in US); id. at 43 (confirming “sheer size of the number of different suppliers” in China); id. at 47 (“.…There are multiple suppliers in China, aren’t there? A. There are.”); Ex. 6 (Maldonado Dep.) at 136 (“Q. Do you have any sense of how many factories there are in China that manufacture [BL] around the time of your visits? A. I was told by these two gentlemen there were over 3,000.”). Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 8 of 36 PageID 1658 1741922.1 3 after several years of use. Factory 3 may generally have produced long-lasting BL, but occasionally produced a roll that lasted a short time.7 Purchasers who bought items upholstered with BL from these different factories would not be similarly situated. Examples from the record demonstrate that individual inquiries would be required to determine how the BL on each purchaser’s items performed. RTG assigns each product a unique Stock-Keeping Unit number, or “SKU.”8 On June 13, 2013, Blobner bought a sofa, SKU 19195610, and chaise, SKU 19295612, for which the vendor was United Furniture; he claims the BL on those items failed within weeks.9 Now compare four other actual BLF purchasers whose transactions are detailed in the Otis Declaration (Ex. 1) ¶¶ 48-82. Customer A bought the very same products as Blobner on the same day and almost six years later, has not complained to RTG. Customer B bought different products than Blobner (three BL-upholstered chairs for which the vendor was TEAE) on the same day, and almost six years later, has not complained. Customer C bought the same products as Blobner on June 27, 2013, and used them for over four years before complaining about BL. Customer D bought a different product than Blobner (a recliner for which the vendor was ACTN) on June 12, 2013, and used it for over four years before complaining about BL. Whether Customers C and D have claims or damages involves further individualized issues because each accepted a “prorated credit offer.” In the interest of customer service, RTG generally offered credit (in varying amounts) to customers who complained about BLF 7 See Ex. 5 (Hamby Dep.) at 43 (“Q. [Blobner’s Counsel] [F]rom what I’ve learned, and maybe you agree, those suppliers, there is no regulation of how they mix their chemical to produce their [BL]. So you can get a great batch and chemically perfect versus something else; does that make sense? Have you heard anything like that? A. Is that a possibility, of course.”). 8 Ex. 7 (Chiovarelli Dec.) ¶ 4. 9 D.E. 94-11 (SAC), Ex. 11 at P003; Ex. 1 (Otis Dec.) ¶ 13 n.9; Ex. 8 (Blobner Dep.) at 56:14-16. Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 9 of 36 PageID 1659 1741922.1 4 even after the one-year warranty period. That credit could be used for items that were not BLF. The record reflects that of complainants who bought during the Period accepted credit offers. Infra at 25. Here, Customers C and D complained about their BLF after using it for more than four years, were offered and accepted credits of 50% of the purchase price of that BLF, and used those credits on brand new items that were not BLF. Only an individualized inquiry could determine if they have any uncompensated injury. As this Court has held, “the named representatives must be able to establish the bulk of the elements of each class members’ claims when they prove their own claims.” Branch v. Credit Union of Tex., 2008 WL 11336300, at *4 (M.D. Fla. Dec. 30, 2008) (citation omitted). Here, claims by different purchasers of BLF cannot be adjudicated on a class-wide basis because there is no common evidence of liability, causation, or damages. Proof that the BL on the two items Blobner bought failed shortly after delivery would not prove whether, when, or why the BL on any other item failed. The dispositive questions in this case can be answered only on the basis of individualized proof about each item of BLF. THE RECORD Blobner bears “a burden of proof, not a burden of pleading. He ‘must affirmatively demonstrate his compliance’ with Rule 23 by proving that the requirements are ‘in fact’ satisfied.” Brown v. Electrolux Home Prods., 817 F.3d 1225, 1234 (11th Cir. 2016) (citation omitted). “Evidentiary proof is required to show compliance with Rule 23.” Foster v. Green Tree Servicing, LLC, 2017 WL 5508371, at *3 (M.D. Fla. Nov. 15, 2017) (citation omitted). I. The record refutes Blobner’s assertion that all BL was defective. During the Period, RTG and the entities whose sales Blobner seeks to attribute to it Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 10 of 36 PageID 1660 1741922.1 5 shipped units of BLF (across 475 different SKUs).10 His assertion that the BL on every one of those units was defective lacks evidentiary support. The only units for which he has evidence of even a possible defect are units about which customers complained. But the record contains no complaints about of units (i.e., hundreds of thousands of units). The absence of a complaint is significant given that—as Blobner and others have stated— cracking, peeling or delamination of BL is readily observable.11 RTG produced two sets of records concerning customer complaints. First, it produced data reflecting instances in which customers complained about cracking or peeling of BL during the one-year warranty period and received a return, exchange, or credit.12 Second, it produced logs of orders about which customers complained even after one year (“Logs”).13 RTG repeatedly explained to Blobner that the Logs include complaints about products other than BLF,14 and provided him with SKU lists so he could see which orders on the Logs contain BLF and which do not.15 But he ignored that evidence, and his counsel prepared a spreadsheet, D.E. 104-22, that is irrelevant and erroneous because it includes all complaints on the Logs, even those that relate to products other than BLF. RTG thus submits the Declaration of Ian Ratner (Ex. 3) to summarize the data 10 Ex. 3 (Ratner Dec.) ¶¶ 12, 19(f). RTG has consistently stated that it “understands the term ‘bonded leather furniture’ to mean furniture whose seating surfaces or arms are upholstered with material that [RTG] refers to as ‘blended leather.’” See, e.g., Ex. 9 ([RTG’s] Resps. & Objs. to Pl’s. First Set of Interrogs.) at 3 (served Oct. 13, 2017). Blobner does not dispute this definition (or provide his own) in the SAC or his class motion. 11 Ex. 10 (Haas Dep.) at 39 (“Q. [Blobner’s Counsel]…[Y]ou can look at a piece of furniture and see that it’s peeling. That’s what you said. Agreed? A. Agreed, yes. Q. That’s common sense. Agreed? You can look at a piece of furniture and that it’s—A. It’s common sense to me yes, sir.”); D.E. 94 (SAC) ¶ 78 (“Even a casual inspection of Plaintiff’s [BLF] reveals its horrific peeling, flaking and deterioration.”). 12 Ex. 1 (Otis Dec.) ¶¶ 11-12. 13 Id. ¶¶ 24-25. 14 Ex. 11 (Otis Dep.) at 91 (logs did not “solely captur[e] prorate credit offers that were extended to customers of [BLF]”); id. at 93:10-24, 300:18-23; Ex. 1 (Otis Dec.) ¶¶ 32, 41, 47. 15 Ex. 7 (Chiovarelli Dec.), Attach. A (BL SKUs); Ex. 12 (Daniell Dec.) ¶ 18 (SKUs in orders on Logs). Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 11 of 36 PageID 1661 Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 12 of 36 PageID 1662 1741922.1 7 qualifications said after looking at (not testing) two (and only two) samples of BL made by unknown manufacturers.20 Thus, the line is inadmissible hearsay.21 Second, Maldonado did not include the line in his final version of the document because it was unsupported and he did not trust the speaker.22 Third, the line does not state that all BL purchased by RTG vendors was formulated to last one year. And the speaker could not have been referring to any BL other than the two samples he saw. Fourth, the line does not apply to BL that RTG vendors purchased after August 2013 (virtually the entire Class Period). Neither Maldonado nor the speaker could know in August 2013 how BL that multiple vendors would purchase in the future from multiple manufacturers would be formulated. Fifth, no one with personal knowledge—no BL manufacturer or BLF vendor—testified that BL purchased during the Class Period was formulated to last one year in a non-humid environment.23 20 Ex. 6 (Maldonado Dep.) at 73 (“Q. Those were your words at the time that you wrote it, correct? A. That was actually the opinion of the director that I talked do.”); id. at 75 (“Again, in retrospect, I probably should have said in their opinion, because this really was coming from the Chinese individual that I was talking with. And I don’t speak Chinese, so this was coming through an interpreter, but I didn’t trust them at this point.”); id. at 137-38 (“Q….What was the original speaker, the Chinese speaker, if you will, what had that person done before imparting that information to you reflected in your memos? A. He just looked at the two samples. Q. Just looked at the two samples; did you tell him what factories supplied Rooms To Go’s vendors? A. No. Q. Do you know if there is any way that the person speaking Chinese could have known that fact? A. No.”); id. at 39:21- 40:1, 45:11-13, 74:17-75:2, 137:8-24. 21 Coughlin v. Capitol Cement Co., 571 F.2d 290, 306 (5th Cir. 1978) (recitation of statement by non-party is hearsay, not an admission); Cedeck v. Hamiltonian Fed. Sav. & Loan Ass’n, 551 F.2d 1136, 1138 (8th Cir. 1977) (hearsay within statement of employee is double hearsay and inadmissible). 22 Ex. 6 (Maldonado Dep.) at 45:14-17 (Maldonado doubts speaker’s honesty); id. at 46-47 (“It just didn’t jive. I brought a couple of samples with me and the gentleman that I showed it to, visually looked at it and said oh, that’s caused by high humidity and I’m, like, wait a second, like, how do you come to this conclusion…. I hadn’t had anybody tell me that, at all, in my investigation and here is somebody looking at it without running any tests….”); id. at 58-59 (Maldonado revised document “[b]ecause they were giving me facts” but “they couldn’t support it with any kind of statistical data that showed the product that was formulated for one year would only last one year. We weren’t seeing that. We weren’t seeing that in the field, so I didn’t feel comfortable with putting that out there.”); id. at 60 (speaker had “vested interest” to describe other factories’ products as inferior); id. at 48:3, 62:16, 64:2, 69:19-23, 71:8-13, 144:17-24. 23 Maldonado is not and does not claim to be qualified to assess the formulation of BL. Id. at 50:11-13, 51:5- 14, 138 (“Q. So can you testify, as a matter of fact, that either of the conclusions that I read to you from your memos are in fact true? A. I cannot.”), 139 (“Q. Can you tell me, as a matter of fact, whether all of the [BL] that was on furniture sold in [RTG] stores was formulated in the same way? A. No.”); id. (“Q. Can you tell me Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 13 of 36 PageID 1663 1741922.1 8 Finally, even if the line were admissible, it is not a judicial admission. It cannot eliminate RTG’s right to put on individualized proof as to whether the BL on each item was in fact formulated to last one year in a non-humid environment. RTG would put on proof of how long the BL on each item actually lasted, e.g., that the BL on Customer A’s items has lasted almost six years with no complaint and on Customer C’s items lasted more than four years before a complaint. A jury could conclude from this proof that—whatever Blobner may pretend—the BL on the hundreds of thousands of items that lasted well beyond a year was not formulated to last one year in a non-humid environment. Blobner himself cannot use the Maldonado memo to support his claim. When Blobner bought his items in June 2013, RTG did not have whatever “knowledge” Maldonado allegedly obtained in China on July 31 and August 1, 2013. III. Blobner’s claim turns on individualized evidence. Resolution of the named plaintiff’s claim must resolve the claims of the class, but Blobner’s motion studiously avoids discussing his own claim. That is because it turns on individualized proof. Blobner’s claim is that, when RTG sold SKUs 19195610 (sofa) and 19295612 (chaise) to him on June 13, 2013, it knew, but did not disclose, that the BL on those items was defective. (He has abandoned the breach of warranty claim asserted in his first complaint). His testimony that the BL on his items failed is individualized evidence because it proves nothing about any other item. For example, it does not prove that the BL on Customer A’s items—the same sofa and chaise Blobner bought—did fail or will fail; in fact, Customer A’s items have not generated a complaint for almost six years. The same whether it was manufactured using the same processes? A. I cannot. Q. Or the same inputs? A. I cannot.”). Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 14 of 36 PageID 1664 1741922.1 9 holds for Customer B’s chairs, which are from a different vendor. Blobner’s testimony is not class-wide proof of whether, when, or why the BL on any other item has failed or will fail. Blobner’s claim that RTG knew his items were defective is also individualized because it turns on evidence specific to those items and the date he bought them. The record reflects that, when Blobner made his purchase, (1) at least units of SKU 19195610 and units of SKU 19295612 had been shipped, and (2) RTG had received complaints about the BL on units of the former ( ) and units of the latter ( ).24 So, RTG had received no complaints about BL for of its sales of those items when it sold them to Blobner. Blobner’s claim that RTG knew his items were defective is thus meritless. But the salient point is that the evidence about what RTG knew is specific to Blobner’s purchase and does not apply to the claims of all purchasers, i.e., does not apply class-wide. The record does not support Blobner’s assertion that RTG “knew years before the Class Period that thousands of pieces of [BLF]” were cracking and peeling. D.E. 104 at 3. The portions of the Maldonado Deposition he cites (33:6-13, 124:1-10) say nothing about “thousands” of such incidents before the Class Period. And Blobner himself contradicts this assertion. His Exhibit 22 (D.E. 104-22) says that between August 2011 and August 2013, RTG received “Total Claims” about all BLF. First, this statistic is not admissible because it aggregates claims about different products (that Blobner did not buy) for which the BL was manufactured by different companies.25 Even if it were admissible, as of June 24 Ex. 3 (Ratner Dec.) ¶ 19(b)-(c); Ex. 1 (Otis Dec.) ¶ 22; id. ¶¶ 13-21. 25 See Gardner v. Ford Motor Co., 166 F. Supp. 3d 1261, 1269-70 (M.D. Fla. 2015) (other incidents not admissible absent showing of substantial similarity). It would be akin to admitting all complaints about Behr, Glidden, and PPG high-gloss paints in a suit by a purchaser who bought only a PPG high-gloss. Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 15 of 36 PageID 1665 1741922.1 10 13, 2013, more than units of BLF had been shipped.26 Thus, using Blobner’s number, RTG had received complaints about of those units when he purchased. Again, the claim that RTG knew his furniture was defective is meritless. But more importantly, RTG’s knowledge of the number of complaints about BLF varied each day of the Class Period and thus would vary for each purchaser, i.e., would require individualized proof. ARGUMENT AND CITATION OF AUTHORITIES I. Blobner lacks standing to assert claims relating to products he did not purchase. “‘[P]rior to the certification of a class, and technically speaking before undertaking any formal typicality or commonality review, the district court must determine that at least one named class representative has Article III standing to raise each class subclaim.’” Atkinson v. Wal-Mart Stores, Inc., 2009 WL 1458020, at *2 (M.D. Fla. May 26, 2009) (Moody, J.) (quoting Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000)). “[A] claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.” Prado-Steiman, 221 F.3d at 1280 (citation omitted). RTG sold hundreds of different products upholstered with BL made by numerous companies. Blobner “suffered [no] injury” from products he did not buy and cannot assert claims concerning them. Id. For example, he did not buy SKU 42418649, a chair Customer B bought, and could not himself file suit based on that SKU. Thus, he cannot represent a class asserting claims based on that SKU: “Since Plaintiff lacks standing to bring the asserted claims on his own behalf, he also lacks standing to represent a class asserting such claims.” Atkinson, 2009 WL 1458020, at *4; Wooden v. Bd. of Regents of Univ. Sys. of Ga., 26 Ex. 3 (Ratner Dec.) ¶ 19(a). This figure includes only shipments from June 1, 2012 to June 13, 2013. Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 16 of 36 PageID 1666 1741922.1 11 247 F.3d 1262, 1288 (11th Cir. 2001) (“[J]ust as a plaintiff cannot pursue an individual claim unless he proves standing, a plaintiff cannot represent a class unless he has standing to raise the claims of the class he seeks to represent.”). At least 14 Florida district court decisions hold that class representatives have standing to assert claims regarding only products they purchased—and all those decisions involve allegations that a product was defective or the subject of omissions or misrepresentations.27 In Bohlke v. Shearer’s Foods, 2015 WL 249418, *4 (S.D. Fla. Jan. 20, 27 Ohio State Troopers Ass’n v. Point Blank Enters., 347 F. Supp. 3d 1207, 1219, 1221-22 (S.D. Fla. 2018) (named plaintiffs in FDUTPA action “only have standing to bring claims arising out of their purchase of” 2 models of ballistic vests, not “hundreds of different models” they did not buy); Leon v. Cont’l AG, 301 F. Supp. 3d 1203, 1221 (S.D. Fla. 2017) (named plaintiffs “purchased Mercedes Benz C Class model vehicles” and “have no standing to bring Counts [including FDUTPA] on behalf of owners of Mercedes Benz GLK Class model vehicles” although they allege same defective component installed in both models); Varner v. Domestic Corp., 2017 WL 3730618, at *6 (S.D. Fla. Feb. 7, 2017) (“[t]he distinguishing factor for determining standing” is “whether there is a Named Plaintiff for each model of Defective Refrigerator. But there is not a Named Plaintiff [who] got each model of Defective Refrigerator.”) (citations omitted) (consumer protection, unjust enrichment); Decerbo v. Melitta USA Inc., 2016 WL 7206244, at *1 (M.D. Fla. Oct. 17, 2016) (“[W]hile the Plaintiff has standing to pursue claims for the ‘French Vanilla’ and ‘Hazelnut Creme’ products she claims to have purchased based on the Defendant’s deceptive mislabeling, she lacks standing to pursue claims related to products she never personally purchased.”); Sanchez-Knutson v. Ford Motor Co., 2015 WL 11197772, at *2 (S.D. Fla. July 22, 2015) (“Plaintiff lacks Article III standing to assert claims relating to vehicles that she did not purchase”); Holliday v. Albion Labs., Inc., 2015 WL 10857479, at *5 (S.D. Fla. June 9, 2015) (“a plaintiff cannot establish Article III standing to bring claims for products he did not purchase,” so “Plaintiff only has standing to bring claims related to” 2 of dozens of products) (FDUTPA, unjust enrichment); Dapeer v. Neutrogena Corp., 95 F. Supp. 3d 1366, 1373 (S.D. Fla. 2015) (“Plaintiff lacks Article III standing to bring claims on behalf of the Neutrogena products he did not purchase because he cannot conceivably allege any injuries from products that he never purchased or used.”) (FDUTPA, unjust enrichment); Barron v. Snyder’s- Lance, Inc., 2015 WL 11182066, at *17 (S.D. Fla. Mar. 20, 2015) (“putative classes lack standing to sue with respect to products the class representatives did not purchase”) (FDUTPA); Bohlke v. Shearer’s Foods, LLC, 2015 WL 249418, at *4 (S.D. Fla. Jan. 20, 2015) (“the claims that Plaintiff has standing to bring are limited to” 3 flavors of rice crisps she bought and do not include flavors she did not buy) (FDUTPA, unjust enrichment); Garcia v. Kashi Co., 43 F. Supp. 3d 1359, 1394 (S.D. Fla. 2014) (“the claims Plaintiffs[] have standing to bring are limited to” 8 products they purchased out of 81 in complaint) (FDUTPA); Garcia v. Clarins, USA, Inc., 2014 WL 11997812, at *1 (S.D. Fla. Sept. 5, 2014) (dismissing FDUTPA and unjust enrichment claims based on “products [plaintiff] did not purchase because she cannot allege she suffered an injury in fact as to those products and, therefore, lacks standing as to products other than those she purchased”); Reilly v. Amy’s Kitchen, Inc., 2014 WL 905441, at *2 (S.D. Fla. Mar. 7, 2014) (“a plaintiff cannot demonstrate injury in fact related to products she did actually not purchase”) (FDUTPA, unjust enrichment); Reilly v. Amy’s Kitchen, Inc., 2013 WL 9638985, at *2 (S.D. Fla. Dec. 9, 2013) (“a plaintiff only has standing to assert claims related to products that he or she actually purchased”); Toback v. GNC Holdings, Inc., 2013 WL 5206103, at *5 (S.D. Fla. Sept. 13, 2013) (“Because Plaintiff alleges that he purchased the TriFlex Vitapak, but not other TriFlex products, he has failed to plead that he suffered any injury with regard to products other than the TriFlex Vitapak. Plaintiff Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 17 of 36 PageID 1667 1741922.1 12 2015), the court flatly stated: “[I]n the Eleventh Circuit, a named plaintiff in a consumer class action cannot raise claims relating to products which she herself did not purchase.” Although “some courts in other districts have allowed class claims on behalf of purchasers of products that the named plaintiff did not purchase, so long as those products are sufficiently similar to a product that the named plaintiff did purchase….this ‘sufficient similarity’ argument has not been adopted in the Eleventh Circuit.” Leon, 301 F. Supp. 3d at 1221.28 Nor could it be—Article III prohibits plaintiffs from asserting claims about conduct that did not cause them injury, but are merely similar to claims about conduct that did.29 “[T]he named plaintiff in a consumer class action lack[s] standing to challenge a non- purchased product because there was no injury-in-fact as to that product, even if he purchased a substantially similar product.” Dapeer, 95 F. Supp. 3d at 1373.30 Even under the substantial similarity approach, Blobner would lack standing to assert claims about products he did not buy. That is because he submits no evidence that the BL on products he did not buy was substantially similar to the BL on products he did buy. There is no evidence that all BL was manufactured by the same company or via the same process or with the same materials or that it performed the same. Blobner cannot prove standing merely by saying that a host of different products all fit the general category of “bonded leather.” therefore cannot establish his Article III standing with respect to any product other than the Vitapak, and cannot raise claims relating to those other products which he did not purchase.”) (citations omitted) (FDUTPA). 28 Ohio State Troopers, 347 F. Supp. 3d at 1222 (the “argument that Defendant’s vests all contain identical SSBS systems with the same defect is not persuasive as similarity between products does not confer standing in the Eleventh Circuit”); Decerbo, 2016 WL 7206244, at *3 (“Despite this split of authority, ‘the law in the Eleventh Circuit is clear that at least one named plaintiff must establish Article III standing for each class subclaim.’”)(citation omitted); Holliday, 2015 WL 10857479, at *3 (rejecting “substantially similar” approach). 29 See Warth v. Seldin, 422 U.S. 490, 502 (1975); Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987). 30 Supra n.27. Carter v. Forjas Taurus, S.A., 701 F. App’x 759 (11th Cir. 2017) (per curiam), is not to the contrary. There, an objector to a class settlement argued that the named plaintiff did not suffer actual injury, not that the plaintiff lacked standing because he had not purchased all the products covered by the class definition. Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 18 of 36 PageID 1668 1741922.1 13 II. The proposed class is not adequately defined. Since February 2016, RTG’s sales orders have included an arbitration agreement with a class action waiver. Ex. 1 (Otis Dec.) ¶ 66. Purchasers who bought after that time are bound to arbitrate their claims on an individual basis and may not participate in this case. The proposed class definition is improper because it includes such purchasers. Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 725 n.5 (11th Cir. 1987); see D.E. 95 (Answer) at 51. III. Blobner has failed to prove commonality. In the five pages of his brief devoted to commonality, Blobner does not discuss a single specific question. D.E. 104 at 14-18. He cites a list of questions from the SAC, but he does not explain how any of them have “common answers” that will resolve the claims of all purchasers “in one stroke,” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011), or how the answers can be derived from “the same evidence,” Brown, 817 F.3d at 1234 (citation omitted). His (erroneous) assertions do not meet his burden of proving commonality. IV. Blobner has failed to prove typicality. In a case about synthetic leather upholstery, this Court stated, “[I]f proof of the representative’s claim would not necessarily prove all of the proposed class members’ claims, the representative’s claim[s] are not typical of the proposed class’s claims.” Perisic v. Ashley Furniture Indus., Inc., 2018 WL 3391359, at *4 (M.D. Fla. June 27, 2018) (emphasis added), R&R adopted, 2018 WL 4381184 (M.D. Fla. Aug. 13, 2018); Branch, supra at 4; see Rollins, Inc. v. Butland, 951 So. 2d 860, 871 (Fla. 2d DCA 2006) (reversing certification where plaintiffs “cannot—by proving their own cases—prove the cases for each of the thousands of other members of the putative class”). Blobner’s claim suffers from this Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 19 of 36 PageID 1669 1741922.1 14 problem. As set forth, supra at 8-9, proof that the BL on his items failed would not prove the claim of any other purchaser. Determining whether any other item was defective and assessing RTG’s knowledge about that item would still require individualized evidence. That Blobner and others all bought items that fit the general category of “bonded leather” does not mean their claims rise or fall together. V. Individual questions, not common questions, predominate. “To determine whether the requirement of predominance is satisfied, a district court must first identify the parties’ claims and defenses and their elements” and “then classify these issues as common questions or individual questions by predicting how the parties will prove them at trial. Common questions are ones where ‘the same evidence will suffice for each member,’ and individual questions are ones where the evidence will ‘var[y] from member to member.’” Brown, 817 F.3d at 1234 (citations omitted). Blobner fails to meet his burden and does not even discuss how the parties would prove their positions at trial. A. Individual questions predominate on the FDUTPA claim. 1. Whether RTG engaged in a deceptive act or unfair practice turns on individualized proof. The first element of a FDUTPA claim is a deceptive act or unfair practice. Blobner alleges three acts: that RTG (1) sold defective BLF, (2) knew, but did not disclose, that the BLF was defective, and (3) knew, but did not disclose, that the BL on the BLF was formulated to last one year in a non-humid environment. Blobner lacks standing to assert the last claim because he contends that RTG acquired such “knowledge” in August 2013, after he bought his furniture. In any event, all these allegations turn on individualized proof. As to the first two allegations, Blobner must prove a defect to prevail on both claims: Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 20 of 36 PageID 1670 1741922.1 15 If an item was not defective, RTG did not act deceptively or unfairly by (1) selling it or (2) “omitting” a statement that it was defective. But as set forth above, Blobner has no evidence, common or otherwise, that every item of BLF was defective. In particular, he has no evidence of a common design or manufacturing defect in every item when it was sold. Thus, to prove that an item was defective, he would have to submit individualized evidence about the item, such as authenticated pictures or testimony from the purchaser. For the hundreds of thousands of items about which purchasers did not complain, he has no such evidence. For items about which purchasers did complain, he would have to submit individualized evidence about the use and condition of each item. Each complaint presents a different set of facts, and a jury would have to resolve each separately. As an example, one purchaser might have bought an ottoman, used it lightly for fifteen months, and complained about severe damage. Another might have bought a sofa, used it heavily for four years, and complained about mild damage consistent with wear and tear. The evidence concerning whether these items were defective is different, and a jury would have to assess it individually. That would be true for every complaint. Courts repeatedly deny class certification in FDUTPA cases where a plaintiff claims that a defendant sold and made omissions about an allegedly defective product, but lacks common proof of a common defect.31 31 See, e.g., PB Prop. Mgmt., Inc. v. Goodman Mfg. Co., 2016 WL 7666179, at *22 (M.D. Fla. May 12, 2016) (“whether Goodman’s copper evaporator coils have a uniform defect is a common question, but it does not produce a common answer”); id. at *27 (“Individual questions of fact likewise predominate over common questions as to Plaintiffs’ FDUTPA omission claim. Plaintiffs allege that Defendants omitted material information related to the defective nature of Goodman’s copper evaporator coils. In order to prove Defendants’ liability for this claim, then, Plaintiffs must first demonstrate that the copper evaporator coils were indeed uniformly defective…However, ‘generalized proof necessary to establish the existence of a uniform defect is not available in this case’…And if there is no generalized proof available to demonstrate the existence of a Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 21 of 36 PageID 1671 1741922.1 16 Blobner cannot avoid the individualized nature of customer complaints by arguing that RTG did not disclose the number of complaints it received about BLF. Those numbers are not common proof either. The number of complaints RTG received varied for each item and each day of the Class Period, such that “the evidence will ‘var[y] from [class] member to [class] member.’” Brown, 817 F.3d at 1234. For each purchase, RTG would show how many complaints had been received about the purchased item as of the purchase date and the number of units of the item that had been shipped as of that date. So, RTG would show that complaints had been received about the BL on Blobner’s sofa as of June 13, 2013, out of units shipped, supra at 9. The numbers would differ for the chairs Customer B bought that day ( complaints out of units shipped, see Ex. 3 (Ratner Dec.) ¶ 19(d)-(e)), and for the hundreds of different items purchasers bought over the course of the Class Period.32 And there would be variation within the numbers as the complaints would have been made at different times after delivery (some within a year, some after 2 years, some after 4 years, etc.). Because RTG’s knowledge concerning customer complaints varied with each purchase, a jury would have to assess different proof for every single purchaser. That would also be true for aggregate complaint numbers across all BL SKUs uniform defect, there can be no general evidence of a deceptive practice.”) (citation omitted); Justice v. Rheem Mfg. Co., 318 F.R.D. 687, 696 (S.D. Fla. 2016) (denying certification where “individual inquiry” required to prove defect); Harris v. Nortek Global HVAC LLC, 2016 WL 4543108, at *8 (S.D. Fla. Jan. 29, 2016) (“More convincing is Defendant’s argument that because the class definition includes every single copper evaporator coil model manufactured by Defendant in the last five years and there are material differences between these models that impact the propagation and risk of formicary corrosion, Plaintiffs cannot demonstrate a common defect.”); contrast Rosen v. J.M. Auto Inc., 270 F.R.D. 675 (S.D. Fla. 2009) (existence of defect is common question where plaintiff alleges defect in single car model and presents expert testimony concerning defect); Davis v. Powertel, Inc., 776 So. 2d 971 (Fla. 1st DCA 2000) (existence of defective practice is common question where plaintiff alleges single embedded chip renders cell phones inoperable). 32 See Kia Motors, 985 So. 2d at 1137 (FDUTPA plaintiff “sought to portray the class as a large, unified group that [] suffered a uniform, collective injury”, but class certification was reversed where there were differing “warranty repair rates for the three model years”). Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 22 of 36 PageID 1672 1741922.1 17 (although such lumped-together numbers for different products with different manufactures are inadmissible, supra at 9 & n.25). Whether it was deceptive not to tell Blobner on June 13, 2013, that there were complaints about all BLF (his number) out of items shipped ( ), is a different question from whether it was deceptive not to tell a purchaser who bought four years later the total number of complaints out of all items shipped by then. As to Blobner’s third allegation, determining whether the BL on any item was in fact formulated to last one year in a non-humid environment would also require individual inquiries. Blobner must prove this fact—if the BL on an item was not formulated that way, then RTG did nothing wrong by “omitting” a statement that it was. Blobner hopes to rely on a single (inadmissible) line in Maldonado’s August 2013 memo. But that line is not class- wide proof because (1) it does not say that all BL that RTG’s 25 vendors purchased from a host of manufacturers was formulated to last one year in a non-humid environment (at most, it applies to two samples from unknown manufacturers) and (2) it does not apply to BL that RTG’s vendors purchased after August 2013, when the memo was written (because the formulation of BL that vendors would buy in the future was not known then). Even if the line said what Blobner pretends, individual proof would still predominate as to whether the BL on each item RTG sold was in fact formulated to last one year in a non- humid environment. RTG would introduce evidence of how long each item actually lasted (the delivery date; whether there was ever a complaint; if so, when). Proof that an item lasted longer than one year in a humid environment is proof from which a jury could conclude that the item was not formulated to last one year in a non-humid environment—and thus that RTG made no omission when it sold the item. RTG has a due process right to put on that Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 23 of 36 PageID 1673 1741922.1 18 proof. Wal-Mart, 564 U.S. at 367 (violation of due process to certify class “on the premise that [defendant] will not be entitled to litigate its statutory defenses to individual claims”). For example, RTG has a right to show that the items Customers A and B bought have lasted 6 years without a complaint and the items Customers C and D bought lasted 4+ years before a complaint about BL. Individualized proof about hundreds of thousands of items— of which lasted far more than a year—would overwhelm any supposedly common proof.33 This is not a case where uniform facts determine whether the defendant engaged in a deceptive or unfair act. It is not, for example, a case in which a defendant uniformly labels a product as “all natural,” but uniformly uses non-natural ingredients. Whether there is any evidence that the BL on an item was defective varies; how many complaints RTG received about each item varies; and how long each item lasted varies. The only way to assess RTG’s conduct is on an item-by-item basis. Blobner’s argument that RTG has common sales, training, and customer service practices is irrelevant. Common questions predominate only if they have “‘a direct impact on every class member’s effort to establish liability’ that is more substantial than the impact of individualized issues in resolving the claim or claims of each class member.” Landeros v. Pinnacle Recovery, Inc., 692 F. App’x 608, 612 (11th Cir. 2017). These practices do not establish liability and do not have “value” in resolving “each class member’s underlying cause of action.” Rutstein v. Avis Rent-A-Car Sys., 211 F.3d 1228, 1234 (11th Cir. 2000). 33 Blobner’s allegations about “settlements” between RTG and 2 of 25 BLF vendors also involve individualized proof. RTG obtained credits from one vendor at different times, so the evidence would vary for each purchaser. Ex. 15 (Witcher Dep. Ex. 3) (listing credits for 2012-2017 for various reasons; not limited to BLF); Ex. 4 (Witcher Dep.) at 27:9-22, 42:13-43:2. That vendor stopped selling BLF in 2016, well into the Class Period (after Blobner purchased). Id. at 32:16-22. Blobner cites no evidence as to when a second vendor provided credits (in particular, no proof that credits were provided “in 2013.”). D.E. 104 (Pl’s. Mot.) at 3. Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 24 of 36 PageID 1674 1741922.1 19 2. Causation turns on individualized proof. The second element of a FDUTPA claim, causation, also turns on individualized proof. Blobner has no common proof that manufacturers’ defects caused the cracking, peeling, or delamination about which some purchasers complained. Such problems can result from customer use.34 To determine the cause of any problem—the manufacturer, normal wear, improper cleaning, children, pets—a jury would have to assess individualized evidence, such as the purchaser’s testimony. That process would overwhelm any allegedly common issues. Courts have repeatedly held that individual issues predominate where individual inquiries are required to prove that an alleged defect in a product caused harm.35 Blobner also has zero causation evidence for any of his omission theories. He has no evidence that any damages resulted from RTG not disclosing the number of complaints about BLF, “settlements” with 2 vendors, the absence of warranties from BL manufacturers, or that 34 Ex. 5 (Hamby Dep.) at 15 (“most of the stuff that we’ve had back, you know, we suspect that improper care on the part of the consumer is a significant contributor to some of the problems”); Ex. 16 (Simon Dep.) at 73 (“people buy things, and they get it home and they have an issue with it because of the way they use it. So, you know, if someone has an issue with a piece of furniture, it may not be the manufacturer. It may be the person using it.”); id. at 73:9-15, 74:12-25, 75:21-76:3; Ex. 6 (Maldonado Dep.) at 36 (“issues with [BL] fabric are extremely difficult to chase down due to factors in the manufacturing process, due to factors of how it’s being used in the consumer's home”); Ex. 10 (Haas Dep.) at 109 (how long furniture lasts “depends on the consumer and how they use the product….Mine may not last as long because I have a 14-year-old that wants to jump on things, or, you know, do something to it….”); Ex. 14 (Chiovarelli Dep.) at 134:14-15, 144:13-21. 35 See, e.g., PB Prop., 2016 WL 7666179, at *27 (“Even if Plaintiffs could produce evidence that Goodman’s copper evaporator coils contain a common defect--the propensity to develop formicary corrosion and leak refrigerant--the question of whether and why a particular coil failed are individual questions that will be unique to each class member and would overwhelm the litigation. It is undisputed that copper evaporator coils can fail for a number of reasons, and air conditioning systems can leak refrigerant for a number of reasons. Without individual inquiry, there is no way to determine if a plaintiff’s Goodman product experienced a leakage of refrigerant due to a failure in the evaporator coil, and if so, whether the leak was due to formicary corrosion. These individual questions of causation predominate.”); Harris, 2016 WL 4543108, at *14 (“Courts have routinely found differences among various models fatal to class certification.”); City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630, 638 (S.D. Fla. 2010) (“Plaintiffs cannot show that causation here is susceptible to generalized proof on a class-wide basis because determining whether there is a uniform defect in certain models of FlexPipe in no way resolves whether the defect did in fact cause any individual class member’s harm.”) (citation omitted); Kia Motors, 985 So. 2d at 1140 (“[w]ithout individual inquiry, there is no way” to determine whether problem “was based on normal wear, a defective” part, or other factors). Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 25 of 36 PageID 1675 1741922.1 20 the BL on an item was supposedly formulated to last one year in a non-humid environment. The absence of price premium evidence is detailed below. The important point here is that Blobner could establish causation for his omission theories only by introducing testimony from each purchaser that they paid more for an item than they would have if they had known the allegedly omitted fact. That process would overwhelm any allegedly common issues. 3. Whether each purchaser suffered damages and the amount of any damages turn on individualized proof. The final element of a FDUTPA claim is proof that the plaintiff suffered damages. In Carriuolo v. General Motors Co., 823 F.3d 977, 986 (11th Cir. 2016), the Eleventh Circuit held that “FDUTPA damages are measured according to ‘the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties.’” (Citation omitted). The first fatal defect here is that Blobner submits no evidence of the market value of any item of BLF in the condition in which it was delivered. There is no evidence of any diminution in the market value of any item that did not experience a problem. And there is no evidence of the market value of any item that did experience a problem. Nor is there evidence of the market value of any item for which the BL was allegedly formulated to last one year in a non-humid environment. “FDUTPA recovery depends on whether the plaintiffs paid a price premium,” id., and the Supreme Court has held that a party seeking certification of a damages class “must…satisfy” Rule 23(b)(3) “through evidentiary proof,” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). Thus, Blobner may not assume that the various acts and omissions he alleges resulted in a price premium; his burden, which he made no attempt to meet, was to Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 26 of 36 PageID 1676 1741922.1 21 make an evidentiary showing that he could prove price premium damages on a class-wide basis. Harris, 2016 WL 4543108, at *12 (“[T]o satisfy the predominance requirement, a plaintiff must demonstrate that the individual injury resulting from the alleged FDUTPA violation was ‘capable of proof at trial through evidence that [was] common to the class rather than individual to its members.’”) (citing Comcast); see Reilly v. Chipotle Mexican Grill, Inc., 711 F. App’x. 525, 529 (11th Cir. 2017) (“[Plaintiff] also argues that ‘[c]ommon sense dictates that’ a ‘“non-GMO burrito”… [is] worth more than a “GMO” burrito,’ but [FDUTPA] ‘does not provide for the recovery of…speculative losses.’”) (Citing Butland).36 Even if Blobner had attempted to make the required evidentiary showing, a second defect would doom his motion: There is no common evidence of the market value of each item of BLF in the condition in which it was delivered. The market value of a sofa and chaise that were delivered in a condition that allowed them to be used without a problem ever occurring is different from the market value of a sofa and chaise that were delivered in a condition that allowed them to be used for only a few weeks. The market value of each item as delivered was not uniform and varied according to factors that can be proved only through individualized evidence: Did a problem occur? If so, when? How serious was it? See Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133, 1138 (Fla. 3d DCA 2008) (given “significant differences in the performance” of brakes, it was “scientifically and logically impossible to conclude that any performance issues for these three model years were the result of a 36 Blobner’s vague suggestion in a footnote that he could rely on RTG’s prorate policies to compute damages is both erroneous and odd. First, under those policies, RTG did not offer credit to customers who did not complain; thus, damages would be zero for at least of purchasers. Second, there is no evidence that RTG’s offers to those who did complain were a calculation of the market value of any item; instead, they were a streamlined way to resolve customer complaints. Ex. 1 (Otis Dec.) ¶ 23. Third, if Blobner contended that those offers reflect market value, he would be conceding that anyone who accepted an offer was made whole. Fourth, Blobner’s suggestion is not linked to any theory of liability he offers, as required by Comcast, 569 U.S. at 35. Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 27 of 36 PageID 1677 1741922.1 22 common design. It follows that even if there existed a difference between the price paid for each vehicle and the value of the vehicle as delivered for any design period, that difference cannot be proven on a class-wide basis. In fact, to proceed at the level of abstraction urged by [plaintiff] would raise due process concerns.”) (emphasis added). Aware of these problems, Blobner does not even attempt to prove market value and tries instead to invoke a “worthlessness” exception. This “exception to the [market value] rule may exist when the product is rendered valueless as a result of the defect—then the purchase price is the appropriate measure of actual damages.” Democratic Republic of the Congo v. Air Capital Grp., 614 F. App’x 460, 472 (11th Cir. 2015) (quoting Rollins, Inc. v. Heller, 454 So. 2d 580, 585 (Fla. 3d DCA 1984)). Thus, “plaintiffs must marshal evidence to prove the gap in value between what was promised and what was delivered, unless defendant palmed off a product that was truly worthless.” Id. (second emphasis added). That exception does not apply here. Whatever acts or omissions Blobner attributes to RTG, there is no evidence that all the BLF it sold was “valueless” or “truly worthless.” Id. The record instead reflects that almost every purchaser was able to use their BLF, i.e., to obtain value from it. Most did so without experiencing any problems, but even those who alleged problems were able to use their furniture for some time—generally years.37 Blobner himself testified that purchasers who use furniture for some length of time obtain value from it: “Q. Generally—see if you agree with this. Generally, the longer furniture lasts, the more valuable it is to the consumer? THE WITNESS: And I would—I would say yes.” Ex. 8 37 See In re ConAgra Peanut Butter Prods. Liab. Litig., 251 F.R.D. 689, 699 (N.D. Ga. 2008) (“Since most ConAgra peanut butter was free of contamination some consumers ate all the peanut butter they purchased either prior to or after the recall without ill effect. Others ate at least a portion of it without ill-effect. Consequently, some attained the full value of their purchase, while others attained at least some value.”). Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 28 of 36 PageID 1678 1741922.1 23 (Blobner Dep.) at 76 (objection omitted); id. at 77 (“if you’re saying it’s more valuable because you can use it longer, then I agree with that”). In Democratic Republic, the Eleventh Circuit recognized that when a product “retained some of its value, plaintiff could not base damages on the purchase price.” 614 F. App’x at 472 (emphasis added) (citation omitted).38 H&J Paving of Fla., Inc. v. Nextel, Inc., 849 So. 2d 1099 (Fla. 3d DCA 2003), demonstrates this point. In that case, plaintiffs brought a FDUTPA claim alleging that Nextel sold them a radio system and represented it would last for eight years, but knew and failed to disclose that it would be obsolete in just a few years. The court noted the worthlessness exception, but held that “the correct measure of damages…would be the value of the products at the time of sale based upon a useful life of approximately eight years and the value of the product which would become obsolete within a few years.” Id. at 1102. Here, even if purchasers expected BL that was formulated to last more than one year (although the record contains no such evidence and the warranty was explicitly for one year), and even if RTG delivered BL that was formulated to last one year, the damages under H&J Paving would be the gap in market value, not the purchase price. Blobner’s out-of-Circuit case, Makaeff v. Trump Univ., LLC, 309 F.R.D. 631 (S.D. Cal. 2015), undermines his attempt to invoke the worthlessness exception. First, it recognizes that “tangible product[s]” may retain value even if they differ from what a purchaser expects: “[T]here is no question that food products have intrinsic value even when stripped of some advertised quality such as being ‘all natural.’” Id. at 639. In the same way, 38 In Democratic Republic, “defendants’ work added no value,” and defendants did not give plaintiff two engines for which plaintiff paid. Because plaintiff “received nothing that it paid for,” the price of the repairs and the engines could be used to measure damages. 614 F. App’x at 473. Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 29 of 36 PageID 1679 1741922.1 24 BLF would retain value even if the BL lacked the quality of being formulated to last more than one year. And when Makaeff applied the worthlessness exception (to intellectual property) it held that FDUTPA damages issues could not be certified. The court decertified those issues because even if the plaintiffs could start with the assumption that what they received was worthless, the defendant had a due process right to put on proof that each plaintiff received some value. Id. at 642. Likewise, RTG has a due process right to put on proof that each purchaser obtained value from BLF by using it—typically for years.39 Blobner’s FDUTPA claim cannot be certified because he fails to submit any proof, much less common proof, that each purchaser suffered damages as defined by that statute. Perisic, 2018 WL 3391359, at *6 (named plaintiff “must demonstrate that all class members have suffered injury and ‘that damages are capable of measurement on a classwide basis’”) (citation omitted). This failure relates to the fact of damages, not simply the amount of damages. There is no evidence that purchasers who did not complain about BLF (a vast majority) suffered any damage, either by paying a price premium or by receiving a worthless product. That in itself precludes class certification: [I]t is certain that many members of the putative class did not experience any actual loss resulting from deficient performance by Orkin or from a reinfestation by subterranean termites. The members of the putative class who experienced no actual loss have no claim for damages under FDUTPA…..It follows that some members of the putative class have sustained an actual loss for which recovery could be sought under FDUTPA, while many others have not. For this reason, there is no class-wide proof of damages available on the FDUTPA damages claim. Butland, 951 So. 2d at 873 (citations omitted). And there is no common proof of the fact of 39 Bohlke, cited by Blobner, denied a motion to dismiss a worthlessness theory at the pleadings stage. 2015 WL 249418, at *8. At the class stage, Blobner’s burden is to submit common proof that all BLF is worthless; he has failed to do so. In re Morning Song Bird Food Litig., 320 F.R.D 540 (S.D. Cal. 2017), is not a FDUTPA case; it allowed a refund measure of damages on a RICO claim based on proof that bird food was actually bird poison. Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 30 of 36 PageID 1680 1741922.1 25 damages for customers who did complain. Individualized evidence (pictures, testimony) would be required to determine whether the BL on a complainant’s furniture in fact failed. As to the amount of damages, Blobner ignores the Eleventh Circuit’s ruling in Brown that “individual damages defeat predominance if computing them ‘will be so complex, fact- specific, and difficult that the burden on the court system would be simply intolerable.’” 817 F.3d at 1240 (citation omitted). That is the case here: To compute individual damages, a jury would have to hear individualized evidence as to whether each item experienced a problem, how long the item was used before the problem occurred, and how serious the problem was. “Questions of individual damage calculations will inevitably overwhelm questions common to the class.” Comcast, 569 U.S. at 34.40 4. The claims of purchasers who accepted credit offers turn on individualized proof. Although BLF was sold with a one-year warranty, RTG generally offered credit (50% or 100% of purchase price, depending on length of use) to those who complained even after the warranty period. Ex. 1 (Otis Dec.) ¶¶ 23-24. That credit could be used toward new furniture and was not restricted to BLF. Id. ¶ 68. The record reflects that of (in-Period) purchasers who complained about BLF after the warranty period accepted credit offers.41 Additional individual issues exist for them. For each of the purchasers who accepted credit 40 The Declaration of Eric Miller (Pl’s. Ex. 20, D.E. 104-20), a settlement administrator, is irrelevant to and inadmissible regarding damages. Miller was not identified as a damages expert and cannot testify as to the proper measure of damages, which is a legal issue for the Court. See Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (“the court must be the jury’s only source of law”). Further, Miller offers no evidence of the market value of any item as delivered, that the market value of different items is uniform, that any item was worthless, or that RTG’s profits on any item are ascertainable. He simply assumes, wrongly, that purchase price is the proper measure of damages and states he could derive that price from sales orders. 41 See Ex. 12 (Daniell Dec.) ¶¶ 19-20. RTG took the in-Period orders for which credit offers were made (which are listed on the Logs) and used the issuance of a return containing BLF after the date the purchaser complained as evidence of acceptance of a credit offer. of orders ( ) met these criteria. Id. Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 31 of 36 PageID 1681 1741922.1 26 offers, a jury would have to determine if—after using BLF, often for years, and accepting credit to buy new furniture—the purchaser has any claim or damages (and if so, the amount). B. Individual issues predominate on the unjust enrichment claim. The Eleventh Circuit has held that Florida unjust enrichment claims are rarely appropriate for class certification because they turn on individualized issues: In Florida, “[t]he essential elements of a claim for unjust enrichment [include]…the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.” Critical for present purposes, before it can grant relief on this equitable claim, a court must examine the particular circumstances of an individual case and assure itself that, without a remedy, inequity would result or persist. Due to the necessity of this inquiry into the individualized equities attendant to each class member, courts, including ours, have found unjust enrichment claims inappropriate for class action treatment. In short, common questions will rarely, if ever, predominate an unjust enrichment claim, the resolution of which turns on individualized facts. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1274 (11th Cir. 2009) (citations omitted); Webber v. Esquire Deposition Servs., LLC, 439 F. App’x 849, 851 (11th Cir. 2011). Florida district courts routinely deny certification of unjust enrichment claims in product cases.42 The cases Blobner cites involve a party applying a charge or overcharge to all class members, not the sale of multiple products, made by multiple manufacturers, that perform differently.43 42 See Perisic, 2018 WL 3391359, at *4 (denying certification of unjust enrichment claim in action concerning durability of synthetic leather upholstery); Justice, 318 F.R.D. at 697-98 (denying certification of unjust enrichment claim in defective product action); Harris, 2016 WL 4543108, at *16 (same); Walewski v. ZeniMax Media, Inc., 2012 WL 834125 (M.D. Fla. Jan. 30, 2012) (same), R&R adopted, 2012 WL 847236 (Mar. 13, 2012), aff’d, 502 F. App’x 857 (11th Cir. 2012); City of St. Petersburg, 265 F.R.D. at 640 (same); see also Ortiz v. Ford Motor Co., 909 So. 2d 479, 481 (Fla. 3d DCA 2005) (unjust enrichment claim does not “turn predominately on classwide proof” where plaintiff alleges defect in “different models” of car). 43 In re Checking Account Overdraft Litig., 281 F.R.D. 667 (S.D. Fla. 2012) (overdraft fees generated by automated re-ordering of debit card transactions); James D. Hinson Elec. Contr. Co. v. BellSouth Telecomms., Inc., 275 F.R.D. 638 (M.D. Fla. 2011) (overcharges for claims processing and overhead expenses added to all class member bills); County of Monroe v. Priceline.com, Inc., 265 F.R.D. 659 (S.D. Fla. 2010) (tax on all hotel operators); In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672 (S.D. Fla. 2004) (overcharges for prescription drug via antitrust conspiracy); In re Nat’l Life Ins. Deferred Annuities Litig., 268 F.R.D. 652 (S.D. Cal. 2010) (uniform written misrepresentations concerning bonus and sales charges) (California law). Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 32 of 36 PageID 1682 1741922.1 27 The unjust enrichment claim here would require a host of inquiries into the “individualized equities attendant to each” purchaser, Vega, 564 F.3d at 1274, including: whether the BL on each purchaser’s furniture ever developed a problem; if so, whether the problem resulted from customer use; how long each purchaser used the furniture before the problem developed; how long each purchaser expected the furniture to last; how severe the problem was; whether and when each purchaser notified and gave RTG an opportunity to resolve the problem; and if notice was provided, what resolution RTG offered and whether each purchaser accepted it. There is no common answer or common proof for any of these inquiries. Harris, 2016 WL 4543108, at *16 (“individualized inquiries are necessary to determine the extent to which individual inequities exist as to class members”). Individual issues would also predominate with respect to the amount of any recovery for unjust enrichment. RTG was not unjustly enriched to the extent a purchaser received value from BLF. Thus, the amount of any recovery would not be the full purchase price, but instead would turn on how much value each purchaser received. A jury could find that Customer A, who has used his BLF for almost six years without complaint, should recover nothing and that Customer C, who used his BLF for more than four years before a complaint, then received a 50% credit toward new non-BL furniture, should also recover nothing or only a fraction of his original purchase price. Moreover, even Blobner admits that profit, not purchase price, would be the measure of any unjust enrichment. D.E. 104 (Pl’s. Mot.) at 17 (seeking “disgorgement of profit” for this claim); see Geodetic Servs., Inc. v. Zhengzhou Sunward Tech. Co., 2014 WL 12620804, at *6 (M.D. Fla. Apr. 4, 2014) (“unjust enrichment damages would include the Defendant’s gross profit from the sales, not its Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 33 of 36 PageID 1683 1741922.1 28 gross revenue”). Yet Blobner cites no evidence that RTG’s profit on any item of BLF can be determined, much less determined on a class-wide basis. VI. Blobner has failed to prove superiority. Blobner has failed to prove that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” F.R.C.P. 23(b)(3). Indeed, for the of purchasers who bought during the Period and never complained about BLF, there is no evidence of a controversy at all. And for the minority who did complain, generally after using BLF for years, accepted the resolutions RTG offered. To the extent a complainant remains unsatisfied, the superior course is an individual suit. The dollars involved are not insubstantial—Blobner spent almost $1,200 on his BLF— and FDUTPA provides for recovery of attorneys’ fees. D.E. 94-11. Any unsatisfied purchasers have strong “interests in individually controlling the prosecution” of their own actions, rather than depending on Blobner. F.R.C.P. 23(b)(3). In litigating his case, Blobner has no need or legal incentive to show that any other purchaser’s items were defective or to address the effect of the one-year warranty (because he says his items failed within weeks). Almost every other purchaser would have to litigate those issues. That Blobner identifies no other “litigation concerning the controversy” confirms there is no need for a class action; there is no reason to “concentrat[e] the litigation” here; and there would be myriad “difficulties in managing a class action.” Id. The claims here would require a jury to assess individualized evidence about every item of BLF RTG sold. CONCLUSION The Court should deny Blobner’s motion for class certification. Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 34 of 36 PageID 1684 By: /s/Jamie Zysk Isani Jamie Zysk Isani (Fla. Bar No. 728861) Corey Lee (Fla. Bar No. 44448) HUNTON ANDREWS KURTH LLP 1111 Brickell Ave. Suite 2500 Miami, FL 33131 Tel.: (305) 810-2500 Fax: (305) 810-1675 jisani@huntonAK.com leec@huntonAK.com Frank M. Lowrey, IV (pro hac vice) Chad K. Lennon (pro hac vice) BONDURANT MIXSON & ELMORE LLP 3900 One Atlantic Center 1201 W. Peachtree St. NW Atlanta, GA 30309 Tel.: (404) 881-4100 Fax: (404) 881-4111 lowrey@bmelaw.com lennon@bmelaw.com Mark J. Criser (Fla. Bar No. 0141496) Tori C. Simmons (Fla. Bar No. 107081) HILL, WARD & HENDERSON PA 101 E. Kennedy Blvd. Suite 3700 Tampa, FL 33602 Tel.: (813) 221-3900 Fax.: (813) 221-2900 mark.criser@hwhlaw.com tori.simmons@hwhlaw.com Counsel for Defendant R.T.G. Furniture Corp. Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 35 of 36 PageID 1685 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 28, 2019, I electronically filed the foregoing with the Clerk of Court by using the Court‘s CM/ECF system that will send a notice of electronic filing to all counsel of record.. /s/Jamie Zysk Isani Jamie Zysk Isani Case 8:17-cv-01676-JSM-SPF Document 118 Filed 03/28/19 Page 36 of 36 PageID 1686
